IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
HERSHALL PARSLEY,
Plaintiff,
v.
CIVIL ACTION NO. 3:17-4322
NORFOLK AND WESTERN
RAILWAY COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
Now pending before the Court is Plaintiff’s Motion to Remand. ECF No. 6. For reasons
specified herein, Plaintiff’s Motion to Remand is DENIED.
I.
Background
Plaintiff filed the present Complaint in Wayne County, West Virginia on October 10, 2017.
ECF No. 1. Defendant removed the case to this Court on November 15, 2017 based on diversity
jurisdiction. ECF No. 1. Plaintiff filed a Motion to Remand on December 14, 2017, alleging that
the amount in controversy in this case is less than $75,000, thereby defeating diversity jurisdiction.
ECF No. 6.
II.
Analysis
A civil action brought in state court over which federal courts have original jurisdiction
may be removed to federal court by a named defendant in the action. 28 U.S.C. § 1441(a) (2017).
Federal district courts have original jurisdiction over a civil action in which the amount in
controversy exceeds $75,000 and the action is between citizens of different states. 28 U.S.C. §
1332 (2011). “Defendants seeking removal bear the burden of demonstrating that jurisdiction is
proper.” Bartnikowski v. NVR, Inc., 307 Fed.Appx. 730, 734 (4th Cir. 2009) (unpublished opinion).
A defendant must prove proper jurisdiction by a preponderance of the evidence. Id. See also
McCoy v. Erie Ins. Co., 147 F.Supp.2d 481, 489 (S.D.W.Va. 2001).
a. Calculation of Amount in Controversy
Where a plaintiff does not specify a dollar amount in his prayer for relief, the Court must
determine the amount in controversy in a given case. McCoy, 147 F.Supp.2d at 489. To do so, the
Court should use common sense to consider what the plaintiff would recover if he was to prevail
on the merits of his case. Id. The Court should “look to the entire record before it and make an
independent evaluation as to whether or not the jurisdictional amount is in issue.” Id.
In the present Complaint, Plaintiff alleges that he has suffered losses as a result of
Defendant’s failure to maintain a railroad crossing including the loss of a structure on his property
that Plaintiff alleges burned due to Defendant’s failure to maintain the crossing. ECF No. 1-2. For
relief, Plaintiff requests that Defendant replace the crossing, “forever maintain [the crossing],” and
provide Plaintiff with funds to rebuild the burned structure. Id.
While Plaintiff did not name a sum certain in his Complaint, Defendant provided the Court
with evidence as to the costs of Plaintiff’s requested relief in its Notice of Removal. ECF No. 1.
Defendant’s Division Engineer for the Pocahontas Division, James Erickson, provided a sworn
statement by affidavit, submitted with Defendant’s Notice of Removal. ECF No. 1-4. Mr. Erickson
is the Division Engineer responsible for the area that includes the track of land in question in this
case. Id. According to Mr. Erickson, constructing the railroad crossing as Plaintiff requests would
cost between $24,000 and $26,000; the crossing would need to be replaced every five years for a
cost between $24,000 and $26,000 every five years; and routine maintenance would cost
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Defendant $300 per year. Id. As Defendant asserts in its notice of removal, Plaintiff’s request for
relief is that Defendant construct the crossing and maintain it into perpetuity. ECF No. 1, ECF No.
1-2.
Plaintiff additionally requests that Defendant pay for the cost of rebuilding the structure
lost in the fire. ECF No. 1-2. Defendant asserts, based on property valuation, that this payment
would be approximately $9,800. ECF No. 1. Taken as a whole, the costs of building and
maintaining the crossing over time and the cost of rebuilding the burned structure equal a sum in
excess of $75,000.
b. Effect of Attempted Stipulation
Plaintiff attempts to refute Defendant’s assertion of the amount in controversy in this case
by including in his Motion to Remand: “The Plaintiff, Hershall Parsley hereby stipulates that the
amount in controversy is less than Seventy-Five Thousand ($75,000.00) Dollars.” ECF No. 6. It is
well-established law, however, that “plaintiffs cannot avoid federal jurisdiction by later stipulating
to an amount of damages below the jurisdictional minimum.” Asociacion Nacional de Pescadores
a Pequena Escala O Artesanales de Colombia v. Dow Quimica de Colombia S.A., 988 F.2d 559,
564 (5th Cir. 1993) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)),
abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 222 (5th Cir. 1998).
In order to use a stipulation of the amount in controversy to successfully avoid federal
jurisdiction in this District, a plaintiff must provide a “formal, truly binding, pre-removal
stipulation signed by counsel and his client explicitly limiting recovery.” McCoy, 147 F.Supp.2d
at 485. See also 14 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3702.4 (4th ed. 2017) (“[T]o be effective, . . . any [stipulation limiting
damages sought] must be filed prior to removal.”). Some courts have held that the stipulation must
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also be filed contemporaneously with the complaint and must be signed and notarized. Kittredge
v. Navy Fed. Credit Union, 2016 WL 47877, at *2 (N.D.W.Va. Jan. 4, 2016) (unpublished
opinion). Finally, some courts require that a stipulation accompany a complaint that states a sumcertain prayer for relief in order to be effective. McCoy, 147 F.Supp.2d at 485.
Oftentimes, informal and non-binding stipulations, even if filed before removal, will not
prevent federal jurisdiction. See Dash v. FirstPlus Home Loan Owner Trust, 248 F.Supp.2d 489,
450 (M.D.N.C. 2003) (declining to remand even though the plaintiffs had included in their
complaint a non-binding stipulation that they would not seek more than $75,000 in compensatory
damages because defendants showed, by a preponderance of the evidence, that the damages
plaintiffs pled, if proven, would entitle the plaintiffs to recovery in excess of $75,000). Likewise,
even properly executed stipulations may fail to prevent federal jurisdiction if the complaint fails
to state a sum certain prayer for relief. See Kittredge, 2016 WL 47877, at *3 (finding that even an
enforceable, unambiguous stipulation that damages were less than $75,000 that had been submitted
together with the plaintiff’s complaint in state court did not, on its own, require remand because
the plaintiff had failed to include a sum-certain prayer for relief in the complaint).
Defective stipulations filed after removal are even less likely to succeed in preventing the
exercise of federal jurisdiction. See McCoy, 147 F.Supp.2d at 485. Courts will remand cases to
state court based on post-removal stipulations of amounts in controversy only under unique
circumstances. See Walker v. Lowe’s Home Centers, Inc., 2010 WL 1404300, at *2 (S.D.W.Va.
Mar. 30, 2010) (unpublished opinion) (remanding where the defendant joined in the post-removal
stipulation that damages would not exceed $75,000).
In this case, Plaintiff’s attempt to stipulate to an amount in controversy below jurisdictional
limits is defective for many reasons. First, Plaintiff has made the attempt only after removal has
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already been effectuated. He did not file any stipulation or affidavit with his Complaint in state
court, let alone one that was formally executed and unambiguously enforceable there.
Additionally, Plaintiff’s assertion of his case’s value in his Motion to Remand is not a binding
stipulation of the kind required by courts in this District, nor does his Complaint state a prayer for
relief for a sum certain. Finally, Plaintiff’s request for remand does not fall within an exception or
qualify as a unique circumstance such that remand would be warranted. Defendant contests
Plaintiff’s request for remand and Plaintiff has shown no other extenuating circumstances that
except his case from the general rules set forth here.
Plaintiff’s attempted stipulation, therefore, does not change the Court’s findings on the
issue of the amount in controversy in this case. Accordingly, the Court FINDS that Defendant has
proven by a preponderance of the evidence that the amount in controversy in this case exceeds
$75,000.
c. Diversity of Citizenship
As for citizenship, Plaintiff notes in his Complaint that he is a resident and citizen of Ohio.
ECF No. 1. Defendant asserts in its Notice of Removal that it is a citizen of Virginia both because
it is incorporated in Virginia and because its principal place of business is located in Norfolk,
Virginia. ECF No. 1. Because Plaintiff is a citizen of Ohio and Defendant is a citizen of Virginia,
the Court FINDS that there is diversity of citizenship among the parties in this case.
Defendant has proven, by a preponderance of the evidence, both the amount in controversy
and the diversity requirements of diversity jurisdiction. Accordingly, the Court FINDS that it has
original jurisdiction over the present matter and DENIES Plaintiff’s Motion to Remand. ECF No.
6.
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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:
February 9, 2018
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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